State Court Docket Watch: Young Americans for Liberty v. St. John IV

In Young Americans for Liberty at the University of Alabama in Huntsville v. St. John IV, the Alabama Supreme Court revived a challenge to the University of Alabama in Huntsville’s campus speech restrictions under both the Alabama Campus Free Speech Act and Section 4 of the Alabama Constitution.[1] While the court reserved judgment on many state constitutional questions until the case goes through discovery, it provided significant guidance on its preferred modes of both statutory interpretation and constitutional analysis.

In 2019, the Alabama Legislature passed the Alabama Campus Free Speech Act (“the Act”), which bars public colleges and universities in Alabama from creating “free speech zones” to “limit or prohibit protected expressive activities” in outdoor campus areas.[2] Public institutions may require outdoor spaces to be reserved in advance “only when [the reservation requirements] are narrowly tailored to serve a significant institutional interest and when the restrictions employ clear, published, content-neutral, and viewpoint-neutral criteria.”[3] Additionally, they must allow for unreserved “spontaneous[] and contemporaneous[]” speech.[4] The University of Alabama in Huntsville adopted a policy that generally required reservations three days in advance for all speech activities on “outdoor areas of campus.” It allowed “spontaneous activities of expression” without prior approval but limited them to twenty designated zones on campus.[5]

In July 2021, the University of Alabama in Huntsville chapter of Young Americans for Liberty and a current student, Joshua Greer, sued arguing that the University’s policy violated the Act and the Alabama Constitution’s guarantee of free speech because the policy required reservations for speech and designated speech zones for spontaneous speech. The trial court granted the University’s motion to dismiss the case on the grounds that the University’s policy violated neither the Act nor the Alabama Constitution.[6]

The Alabama Supreme Court reversed on two grounds. In a majority opinion by Justice Tommy Bryan,[7] the court first held that under ordinary rules of statutory interpretation, the University policy’s designated areas for spontaneous speech “are prohibited ‘free speech zones’ under the Act.”[8] Because the Act “unambiguously prohibits the carving out of special free-speech areas on campus,” whether for spontaneous speech or not, the court held that “the policy violates the Act insofar as it establishes designated areas for spontaneous speech.”[9]

Second, the court considered the policy’s requirement that non-spontaneous speech activities seek University approval three days in advance. The court did not definitively rule on whether this requirement was a sufficiently narrowly tailored time, place, and manner restriction under federal constitutional caselaw and the Act. Instead, the court held that the narrow tailoring analysis is “highly fact-bound” and that it was therefore improper for the district court to dismiss on this ground before any discovery into the facts of the policy’s application.[10] The court warned, however, that because the reservation requirement appeared to apply quite broadly, “it is doubtful that the reservation requirement is narrowly tailored, as the Act requires.”[11]

Despite the case being only at the motion to dismiss stage, the court provided “further direction” to the trial court.[12] The court noted that given its interpretation of the Act, plaintiffs should “at least partially prevail on their claim that the policy violates the Act” insofar as the policy designates “free speech zones” for spontaneous speech.[13] The court also asked the trial court to consider for the first time the University’s argument that of “the Act impermissibly interferes with the power of the Board to manage and control the University” under Section 264 of the Alabama Constitution.[14]

Several justices filed concurring opinions, though all concurred in the result and with at least part of the majority opinion. Justice Greg Shaw concurred specially. He agreed with the majority that the University had created “free speech zones” for spontaneous speech in violation of the Act, but he opined that the University’s time, place, and manner restrictions applied to non-spontaneous speech only, which should inform the trial court’s analysis as the case moves forward.[15]

Chief Justice Tom Parker agreed with the majority opinion in its entirety but for one piece: he believed that it was improper for the court to hold that the free speech zones for spontaneous speech definitively violated the Act on the merits, because there was an open question of fact as to whether the “free speech zones” were “created ‘in order to limit’ protected speech.”[16] Chief Justice Parker additionally discussed the relevance of the Alabama Constitution’s protection of free speech to this case as it moves through the trial court. He noted that the Act’s requirement that time, place, and manner restrictions be constitutional was a reference to “both the federal and Alabama constitutions,”[17] and that because the plaintiffs specifically raised a claim under Section 4 of the Alabama Constitution, the trial court’s analysis should “prioritize analyzing the meaning of [the Alabama] State constitution” over that of the U.S. Constitution.[18] He proceeded to advise that future briefing and analysis of section 4 to the Alabama Constitution focus on the “original public meaning” of the provision, including by referencing Blackstone’s Commentaries and contemporaneous dictionaries.[19]

Justice William Sellers similarly concurred with the majority opinion in all respects except for its merits determination that “as a matter of statutory interpretation, the free-speech zones created by the policy regulating speech in outdoor areas of the campus of the University of Alabama in Huntsville violate [the Act].”[20] Like Chief Justice Parker, he believed a factual question remained “regarding whether the free-speech zones established by the policy were created for limiting or prohibiting protected speech.”[21]

Finally, Justice Jay Mitchell concurred with the main opinion’s reasoning with respect to the plaintiffs’ constitutional claims, but he wrote separately to note his disagreement with the main opinion’s statutory interpretation of the Act, which he agreed with only in result. Justice Mitchell disagreed with what he saw as the main opinion’s reliance on “ascertainment of the law’s intent,” rather than its text.[22] As such, he counseled the parties and amici in the case to “think carefully about their continued reliance on the statements of individual lawmakers” as the case proceeds in trial court.[23] Justice Mitchell additionally discussed the court’s request that the trial court consider on remand “whether the Act violates § 264 of the Alabama Constitution, which gives the Board of Trustees of the University of Alabama ‘management and control’ over the University.”[24] Justice Mitchell opined that the Act very likely did not violate Section 264, because the Act on its face does not “specifically target[] the University, just because it happens to be one public university among many in the State.”[25]

 

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